Hollow judiciary: Obstructionist senators are hobbling the courts

March 15, 2013 10:15 AM

Pittsburgh Post-Gazette

Once again Congress, in not doing its job -- this time, on the confirmation of judges -- is, first, denying Americans the effective functioning of their three-branch system of government and, second, creating a jam-up in the federal courts system.

Although in this round it is the Republican minority in the Senate gumming up the works through party and other interests, the Democrats did the same thing when it was Republican President George W. Bush making the nominations.

The most recent example of Republican obstruction was the case of former New York State Solicitor General Caitlin J. Halligan, President Barack Obama's nominee for the U.S. Court of Appeals for the District of Columbia Circuit. The seat, which has been empty since 2005, was previously occupied by Supreme Court Chief Justice John G. Roberts Jr.

Through the undemocratic filibuster -- which can be ended under Senate rules only by 60 votes or more, not a simple 51-vote majority -- Republicans last week blocked Ms. Halligan's nomination from coming to a vote.

Today there are 17 vacancies at the 13 federal appeals courts. Four of the openings are on the 11-seat District of Columbia circuit, a court which has exclusive jurisdiction over many national security matters and which hears most of the appeals from federal regulatory agencies. This court also is known for producing Supreme Court nominees (Antonin Scalia, Clarence Thomas, Ruth Bader Ginsburg and Mr. Roberts), in part because it handles more constitutional questions involving separation of powers and executive authority than any bench besides the Supreme Court.

The Obama administration has sometimes not been quick to make nominations, in part because of Republicans lying in wait to sabotage them. It should do better, to underscore the confirmation problem and to try to force a solution.

In the meantime, the American people pay the price by being denied two constitutional provisions. The first is to be governed by three branches -- the executive, legislative and judicial, as enshrined in Article III of the Constitution. In this case the legislative branch is disabling the judiciary in its ability to function, hobbling it by blocking the confirmation of judges to fill vacancies.

The second loss is the right to a functioning judicial system, under due process of law. The Senate-imposed shortage of judges means that America's courts are not able to provide the "speedy trial" guaranteed in criminal cases by the Sixth Amendment or the efficiency needed by individuals and corporations to resolve contractual disputes.

All Americans are asking is that senators, paid by the taxpayers, stop playing political games and begin doing their jobs.